Defendant appeals from an order of the Supreme Court, New York County (Walter B. Tolub, J.), entered November 8, 2007, which granted plaintiffs' motion for permission to restore a wall that had previously separated their combined apartments, and from an order, same court and Justice, entered June 6, 2008, which, upon reargument, adhered to the original determination.
The opinion of the court was delivered by: Saxe, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Peter Tom, J.P., David B. Saxe, John W. Sweeny, Jr., Rolando T. Acosta and Helen E. Freedman, JJ.
This appeal challenges the motion court's interpretation of a lease rider that gave the rent-stabilized tenants of two adjoining apartments permission to connect the two apartments by breaking through the common wall of back-to-back foyer closets. The court rejected the landlord's assertion that it alone has the authority to decide whether to restore the wall, and held that, under the lease, the tenants were entitled to restore the wall to its former condition if they so chose. We reverse.
In 1979, plaintiff Dominique Bazin and her then husband, Peter Thall, became rent-stabilized tenants of Apartment 8A, a two-bedroom unit, at 240 West End Avenue, a building then owned by 240 West LLC. In 1983, the couple also rented the adjoining one-bedroom apartment, 8B, entering into a lease for that unit which contained a rider with the following language: "39. It is understood and agreed that Tenant may construct an entrance through the foyer area only, from Apartment 8-A to Apartment 8-B. It is also understood that Tenant has deposited $700 which may be used for the restoration of the proposed aforesaid opening." The apartments were thereafter combined by the tenants through the creation of an entrance approximately 3½ feet wide in the identified portion of the wall. Further, the landlord asserts, without contradiction, that the kitchen fixtures in 8A were removed, and the gas and plumbing lines were capped and sealed, with the approval of the New York City Buildings Department.
At some point thereafter, Thall and Bazin divorced, and Bazin became the sole tenant of record of both apartments. Also residing in the apartments was the couple's daughter, plaintiff Sophie Thall, who was born in 1983.
The record contains no indication that the landlord took any steps between 1983 and 2002 to formally treat the combined apartments as a re-configured single apartment. There was neither a proposal nor an attempt to treat the combined apartments in a single lease, nor was any effort made to amend the certificate of occupancy to reflect the re-configuration. The landlord submitted with its opposition to plaintiffs' motion for permission to restore the wall an affidavit by an expediter asserting that he reviewed the Buildings Department file and that the documents therein reflect that "[t]he combined unit 8AB is a legal single unit in full compliance with Department regulations," and referring to "a comprehensive floor plan detailing the work performed to create this combined unit." However, the affidavit does not indicate when any of this occurred, and no copies of the cited documents were provided.
In 2002, the landlord attempted to register 8A/8B as a single unit with the Division of Housing and Community Renewal (DHCR). That attempt was rejected by DHCR in an order dated November 27, 2002, in which DHCR explained that the evidence submitted to it indicated that apartments 8A and 8B had been registered as separate units and "there is no evidence in the record that a new apartment had been created which would warrant an initial registration."
In July 2003, Bazin returned to the landlord the renewal lease she had been sent for apartment 8A, stating that she no longer lived in that apartment and that the lease should be in the name of Sophie Thall, her now adult daughter, who had resided in the apartment since her birth. An exchange of letters ensued, but it appears that no such lease was ever produced.
In June 2005, the landlord took a different tack, filing a petition for high income rent deregulation of apartment 8A/8B. On June 23, 2006, the petition was denied, because while DHCR acknowledged that the two apartments were a single combined living unit for purposes of high income de-regulation, it concluded that the combined annual income of the tenants was not in excess of $175,000 in 2003.
After the high income deregulation petition was filed, plaintiff's counsel advised the landlord in a letter dated September 28, 2005, that, "[i]n accordance with paragraph 39," Bazin intended to restore the wall between the apartments. He inquired whether the landlord wished to send Bazin a check for $700 or have her deduct the cost from her rent. Counsel added that, if the landlord believed that this restoration required its permission, it should let plaintiffs know, and should "of course grant permission as required under paragraph 39."
The landlord's counsel responded by requesting that plaintiffs forward proof that they had ever paid the $700 deposit, and directing that no steps be taken, inasmuch as "[a] wall between two (2) apartments must [be] constructed according to the Building Code" and required approval of plans. Plaintiffs' counsel replied that the lease acknowledged payment of the deposit and that Building Department ...